Auto Change in Custody from Mother to Father if Mother Moved with Minor Child Reversed

Case: Jacqueline Myers v. Mark Myers 
by Mike Kohlhaas, Bingham Greenebaum Doll  & Tamara McMillian, Bingham Greenebaum Doll

HELD: The trial court’s ruling dismissing Mother’s motion for relocation was AFFIRMED because Mother failed to rebut the presumption that the child was of the marriage and she did not present a good faith basis for the relocation. Further, the parties’ actions post-dissolution supported the trial court’s conclusion that minor child was of the marriage.

HELD: The trial court’s order for an automatic change of custody from Mother to Father if Mother moved to Texas with minor child was REVERSED because this future condition violated Indiana’s modification statute.

Mother and Father married in 2006. They had six children together. During the marriage, the youngest daughter was conceived from Mother’s affair while she was in Paraguay without Father. Although Father learned of Mother’s affair, he signed the birth certificate and acted as the minor child’s parent. Father and Mother divorced in 2012. Post-dissolution, Father exercised regular parenting time without any objection from Mother. The parties’ Decree of Dissolution was contradictory because although the decree questioned the paternity of the minor child, it awarded parenting time to Father. This court reasoned that the trial court would not have had the authority to grant Father parenting time if the minor was not a child of the marriage.

In 2012, Father filed a motion to modify custody and child support. The trial court appointed a guardian ad litem (GAL) to represent minor child. The court granted Father a modification for the minor son but excluded the daughter at issue here.  Later in 2012, Mother filed a notice of intent to relocate to Texas with the daughter out of concern for Mother’s financial challenges in Indiana. Father and GAL objected. During the hearing Mother testified that she wanted to relocate to Texas for financial reasons. Mother stated that she was unable to pay her Indiana expenses and that she could live rent free in Texas. However, Mother testified that her salary in Texas was identical to what she earned in Indiana. The parties’ daughter was a teenager with extra-curricular activities and paternal family in Indiana but no friends or connections in Texas.  The trial court dismissed mother’s motion to relocate to Texas with minor child. It further ordered physical custody to automatically change from Mother to Father if Mother later moved to Texas.

On the issue of paternity and relocation, the Court of Appeals supported the trial court’s finding barring Mother’s relocation to Texas with the child. The Court of Appeals, however, rejected the trial’s court automatic custody order. The Court of Appeals noted that Mother did not rebut the presumption that minor child was of the marriage, she failed to demonstrate a good faith basis for locating the child to Texas and it was not in the child’s best interest to relocate to Texas.  The court’s conclusion was supported by Mother and Father’s post-dissolution behavior, namely Father’s regular parenting time and Mother not objecting to Father’s time with the child.  The doctrine of laches also prevented Mother from raising the issue of the child’s paternity.

Regarding the trial court’s order for an automatic transfer of custody if Mother relocated to Texas, the Court of Appeals rejected this future condition as improper under the Indiana modification stature. The trial court could have included language that Mother’s present custody award was conditioned upon her remaining in Indiana with the child.

The trial court’s relocation judgment was affirmed. The Court of Appeals reversed and remanded the trial court’s automatic change of custody order.

To view the text of this opinion in its entirety, click here: Jacqueline Myers v. Mark Myers


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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